75 N.Y.S. 45 | N.Y. App. Div. | 1902
The order appealed from granted the defendant’s motion for a bill of particulars, but limited the bill to certain items not necessary to enumerate. The action is for negligence, and the allegation of the complaint asserts that “ the plaintiff was injured and bruised in his person, and rendered sick, sore and lame.” There is no allegation of permanent injury. The defendant asked, among other things, that the plaintiff furnish a bill of particulars of “ the nature, location and probable duration of each and every injury alleged in the complaint, except as specifically stated therein, showing particularly how plaintiff was ‘injured and bruised, and rendered sick, sore and lame,’ as alleged in paragraph three of the complaint.” This demand was refused in the order, appealed from.
The case of Steinau v. Metropolitan Street R. Co. (63 App. Div. 126) supports the order. The court there said (p. 127): “We do not think the plaintiff should be compelled to specify by a bill of particulars the injury complained of, its nature, location and extent.” The same court held in Curtin v. Metropolitan Street R. Co. (65 App. Div. 610) that such a bill of particulars should be required in the case of permanent injuries, but this has no application to the present case.
The defendant may, of course, move in a proper case to compel the plaintiff to make his complaint more definite and certain, and may also apply, under the provisions of the Code of Civil Procedure, for a physical examination of the plaintiff. No reason, therefore, exists for restricting a plaintiff to proof upon the trial of definite items of injury not permanent in character, but which may be progressive in their nature and effects, and of which he may not be aware at the time when the bill of items is required.
The order should be affirmed.
All concurred.
Order affirmed, with ten dollars costs and disbursements.
